EH v. Matin

• Decision Date: 21 November 1997
• Docket Number: No. 23999.,23999.
• Citation: 201 W.Va. 463,498 S.E.2d 35
• Court: West Virginia Supreme Court
• Parties: E.H., et al., Petitioners, v. MATIN, et al., Respondents. FAYETTE-MONROE-RALEIGH-SUMMERS MENTAL HEALTH COUNCIL, INC., et al., Intervenors-Petitioners, v. STATE of West Virginia, et al., Respondents. R.A.R. an Infant Under the Age of 18 Years Old, and on Behalf of All Those Similarly Situated, Intervenors-Petitioners, v. Gretchen LEWIS, Secretary of the Department of Health and Human Resources, Respondent.

498 S.E.2d 35

201 W.Va. 463

E.H., et al., Petitioners, v. MATIN, et al., Respondents.

FAYETTE-MONROE-RALEIGH-SUMMERS MENTAL HEALTH COUNCIL, INC., et al., Intervenors-Petitioners, v. STATE of West Virginia, et al., Respondents.

R.A.R. an Infant Under the Age of 18 Years Old, and on Behalf of All Those Similarly Situated, Intervenors-Petitioners, v. Gretchen LEWIS, Secretary of the Department of Health and Human Resources, Respondent.

No. 23999.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 1997.

Decided November 21, 1997.

Daniel F. Hedges, James T. Sugarman, Charleston, for R.A.R.

Darrell V. McGraw, Jr., Attorney General, Barbara Baxter, Assistant Attorney General, Charleston, for Department of Health and Human Resources. MAYNARD, Justice:

In this case we are presented with two certified questions from the Circuit Court of Kanawha County, West Virginia, regarding the utilization of multidisciplinary treatment teams when children are involved in delinquency proceedings.

The questions certified to this Court and the circuit court's answers are:

1. Whether multidisciplinary team assessments, plans, and service plan implementation must be developed pursuant to W.Va. Code § 49-5D-3.

Circuit court's answer: YES

2. Whether courts may specify direct placements of juveniles in out-of-state/area facilities only: (1) if in accord with the plan(s) of the juvenile's multidisciplinary team, or if not in accord with that plan(s), then (2) after the circuit court has made specific fact-based findings following an evidentiary hearing that the plan(s) of the juvenile's multidisciplinary treatment team is inadequate to meet the child's needs.

Circuit court's answer: YES

The facts are not in dispute and were stipulated by the parties below. R.A.R.¹ is a sixteen year old minor resident of Marion County, West Virginia. He is currently in the custody of the Department of Health and Human Resources (DHHR) and has been placed by the circuit court in an out-of-state facility. Psychological evaluations have arrived at varying diagnoses. One evaluation determined R.A.R. suffered from attention deficit hyperactivity disorder. R.A.R. has also been diagnosed as suffering from conduct disorder/oppositional defiant disorder, learning disability, substance abuse and dependence, and possible emotional problems.

R.A.R.'s mother sought treatment for R.A.R. at the Olympic Center in Preston County, West Virginia. While at the center, a psychological assessment recommended psychiatric consultation to determine if psychopharmacological treatment was needed for the attention deficit hyperactivity disorder. Also recommended were weekly counseling sessions with a drug and alcohol specialist and participation in Alcoholics Anonymous. R.A.R. did not receive this recommended treatment.

R.A.R. got into trouble for stealing money from his mother by using her ATM card and for fighting with his brother. In December 1995, R.A.R. was placed in Chestnut Ridge Hospital for thirty days and sentenced to two years probation for petit larceny and battery.

While attending day school at Chestnut Ridge Hospital, R.A.R. screened positive for marijuana. As a result, the circuit court sent R.A.R. to the Northern Regional Juvenile Detention Facility in Ohio County, West Virginia, for sixty days. That detention was to be followed by twenty-four hour detention except to attend school. While detained at Northern Regional Juvenile Detention Facility, R.A.R. collapsed during a recreation period due to a rapid heartbeat. R.A.R. was diagnosed with tachardyia arrhythmia at the Ohio State University Heart Center in Columbus, Ohio.

While on probation, R.A.R. had an argument with his mother and ran away from home. One week later, he was taken from a friend's house and sent by the court to the Kanawha County Children's Home for one month. Upon release, R.A.R. was ordered to live with his grandparents outside Pittsburgh. While there, R.A.R. skipped school to visit with friends and returned to Pittsburgh by the end of the school day. As a result of this incident, the court sentenced R.A.R. to serve from fifteen months to two years confinement at High Plains Youth Center, a facility located in Brush, Colorado which is operated by the Rebound Corporation (Rebound).²

A petition for writ of habeas corpus and mandamus was filed with this Court on behalf of R.A.R. The circuit court then granted a motion to review R.A.R.'s disposition to Rebound. During that hearing, the court changed R.A.R.'s placement to George Junior Republic juvenile facility in Grove City, Pennsylvania.

R.A.R. did not receive a multidisciplinary treatment team assessment plan during the 1995 and 1996 placements. The record seems to indicate that a multidisciplinary treatment team was established for R.A.R. when he was placed at George Junior Republic; however, the court did not receive or consider information from the team once it was created. Rather, R.A.R.'s dispositions were based solely on the judgment of the circuit court and R.A.R.'s probation officer.

The Circuit Court of Kanawha County, in its order entered on February 10, 1997, considered the questions presented here and found the issue was not moot, even though R.A.R.'s placement had been changed from Rebound to George Junior Republic. The court reasoned that the possibility exists for the issue presented here to be repeated with a different juvenile. The court found "[t]his issue of first impression affects a large number of children in West Virginia and merits authoritative interpretation of this legislation by the West Virginia Supreme Court of Appeals." The two questions previously noted were thereby certified to this Court.

The circuit court's first certified question to this Court is framed as follows:

Whether multidisciplinary team assessments, plans, and service plan implementation must be developed pursuant to W.Va. Code § 49-5D-3 (1996).

The language of W.Va.Code § 49-5D-3³ is mandatory and requires the DHHR to convene and direct treatment teams not only for juveniles involved in delinquency proceedings, but also for victims of abuse and neglect. This Court previously said, "It is well established that the word `shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982). The Legislature used the word "shall" in W.Va.Code § 49-5D-3; therefore, West Virginia's fifty-five counties are not granted the discretion to determine whether they will establish treatment teams. W.Va.Code § 49-5D-3 is patently clear that this is a mandatory duty.

The original obligation to coordinate treatment teams was first set forth by this Court in the case of In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). At that time this Court said:

The formulation of the improvement period and family case plans should therefore be a consolidated, multidisciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family. The goal should be the development of a program designed to assist the parent(s) in dealing with any problems which interfere with his ability to be an effective parent and to foster an improved relationship between parent and child with an eventual restoration of full parental rights a hoped-for result.

Id. at 625, 408 S.E.2d at 377 (footnote omitted). The multidisciplinary treatment planning process was later mandated by statute and the process is now set forth in W.Va. Code § 49-5D-3.

The purpose of multidisciplinary treatment teams is stated in the statute itself. W.Va. Code § 49-5D-1(a) (1996) provides in pertinent part:

The purpose of this article is ... to establish, as a complement to other programs of the department of health and human resources, a multidisciplinary screening, advisory and planning system to assist courts in facilitating permanency planning, following the initiation of judicial proceedings, to recommend alternatives and to coordinate evaluations and in-community services.

The treatment planning process was statutorily mandated to be established in each county by January 1, 1995. Once the process is in place, the treatment teams are directed to "assess, plan and implement" comprehensive, individualized service plans for the children they serve.⁴ The comprehensive plan includes child case plans and family plans.

The makeup of the team is also mandated by statute. The child's or family's case manager convenes and directs the team. Other members include

* the child's custodial parent(s) or guardian(s)

* other immediate family members

* attorney(s) representing the parent(s) of the child if assigned by a judge of the circuit court

* the child

(a) if child is over the age of 12 and if child's participation is otherwise appropriate

(b) if child is under 12, when team determines child's participation is appropriate

* the guardian ad litem

* prosecuting attorney or prosecuting attorney's designee

* any other agency, person or professional who may contribute to the team's efforts to assist the child and family.

W.Va.Code § 49-5D-3(b) (1996).

The treatment team is mandated to coordinate their activities with local family resource networks as well as with regional child and family service planning committees. This is "to assure the efficient planning and delivery of child and family services on a local and regional level." W.Va.Code § 49-5D-3(c) (1996). There is no statutory requirement that mandates how often a treatment team must meet, but the team must justify the basis for not reviewing a given child's case if the case is not reviewed every six months. W.Va.Code...